The remedy provided by the Occupational Safety and Health Administration § 11(c)
(29
U.S.C. § 660[c] [1994]) for employees who allege that they have been discharged in
retaliation
for filing complaints under that statute does not preclude the filing of a Kansas common-law
wrongful discharge claim under Kansas's public policy exception to at-will employment.

On a certification of a question of law from the United States Court of Appeals for the
Tenth
Circuit, ROBERT H. HENRY, judge. Opinion filed November 6, 1998. The question certified is
determined.

Stephen J. Dennis, of Overland Park, argued the cause and was on the brief
for appellant.

Rody P. Biggert, of Seyfarth, Shaw, Fairweather & Geraldson, of
Chicago, Illinois, argued the
cause, and John L. Vratil, of Lathrop & Gage, L.L.C., of Overland Park, was
with him on the brief for
appellee.

The opinion of the court was delivered by

SIX, J.: The United States Court of Appeals for the Tenth Circuit has certified
the following question to this court under K.S.A. 60-3201:

"Does the remedy provided by OSHA § 11(c) [29 U.S.C. § 660(c) (1994)]
for
employees who allege that they have been discharged in retaliation for filing complaints
under that statute preclude the filing of a Kansas common law wrongful discharge claim
under Kansas's public policy exception to at-will employment?"

The answer is, "no."

This case arises out of the March 11, 1994, firing of David Flenker, a worker at
Willamette Industries, Inc.'s (Willamette) corrugated paper manufacturing plant.
Willamette's basis for firing Flenker was that he failed to comply with the terms of the
rehabilitation agreement he had signed under Willamette's alcohol and drug use policy.
Flenker contends that he was fired because he reported unsafe working conditions to
Willamette and the Occupational Safety and Health Administration (OSHA).

Our analysis of the certified question is advanced by posing and answering two
secondary questions.

2. If Coleman extends beyond the collective bargaining context, is the remedy
in
OSHA § 11(c) "adequate"? The answer is "no."

FACTS

The Tenth Circuit Certification Order informs us that:

"Mr. Flenker worked as a Class C mechanic for Willamette, a corrugated paper
manufacturer.
After a dispute with his temporary supervisor concerning the safety of a piece of machinery
known as a
corrugated downstacker device, Mr. Flenker made it known at the plant that he intended to file a
complaint with OSHA regarding the machinery.

"Mr. Flenker received a disciplinary warning as a result of the dispute with his temporary
supervisor. The next day, Mr. Flenker received a three-day suspension from his supervisor for his
improper installation of gauges and for the improper repair of sprockets on the bandler line.

"Mr. Flenker later filed his OSHA complaint, alleging violations concerning the safety of
the
corrugated downstacker and other matters. OSHA subsequently made a surprise investigation of
the
Willamette plant. Although the downstacker met OSHA safety standards, OSHA found that
several of
Mr. Flenker's other complaints were valid.

"About a month later, plant manager Dale McGinnis terminated Mr. Flenker's
employment,
contending Mr. Flenker failed to obey the terms of a Rehabilitation Agreement he had signed
under
Willamette's Alcohol and Drug Use Policy. Mr. Flenker claims he was fired because he reported
unsafe
working conditions to Willamette and to OSHA.

"Shortly after his termination, Mr. Flenker filed a section 11(c) retaliatory discharge
complaint
with OSHA, which he later withdrew. Mr. Flenker was informed, presumably by an OSHA
employee, that
because he had fixed the machine in question, which had been a part of his section 11(c) claim, he
no
longer had a claim under OSHA. In September 1995, he filed this action in state court.
Willamette
removed the action to federal court pursuant to 28 U.S.C. § 1446(b).

"Mr. Flenker claims that he was discharged because he exercised his statutory right to
report
unsafe working conditions to his employer. He seeks compensatory damages for lost wages and
benefits and emotional pain and suffering."

Flenker chose to litigate his claims in state court; however, Willamette removed
the lawsuit to federal court.

DISCUSSION

We restate the certified question:

Does the remedy provided by OSHA § 11(c) for employees who allege
that they have been discharged in retaliation for filing complaints under that
statute preclude the filing of a Kansas common law wrongful discharge claim
under Kansas' public policy exception to at-will employment?

At-Will Employment and Exceptions

At-will employment is the general rule in Kansas. We said in Johnston v.
Farmers Alliance Mutual Ins. Co., 218 Kan 543, 546, 545 P.2d 312 (1976): "[I]n the
absence of a contract, expressed or implied, between an employee and his employer
covering the duration of employment, the employment is terminable at the will of either
party."

We have recognized public policy exceptions to the at-will employment doctrine.
For a review of the Kansas case law, see Worth and Landis, Fire at Will? The Status of
Judicially Created Exceptions to Employment-at-Will in Kansas, 64 J.K.B.A. 22 (1995).
The so-called whistle-blower's exception was first announced in Palmer v. Brown,
242
Kan. 893, 752 P.2d 685 (1988). Termination, in retaliation for the good faith reporting
of a co-worker's or employer's serious infraction of rules, regulations, or law pertaining
to public health, safety, and the general welfare, is an actionable tort. 242 Kan. at 900.
Palmer involved an employee's reporting of allegedly improper medicaid billing
practices to "unspecified authorities." 242 Kan. at 894.

Willamette argues that Flenker has no independent state law tort claim, relying
on Polsonv. Davis, 895 F.2d 705 (10th Cir. 1990). Federal courts in
Kansas have
followed Polson's interpretation of Kansas law (exceptions to the at-will employment
doctrine should be limited to situations where there is no adequate alternative remedy),
e.g., Conner v. Schnuck Markets, Inc., 906 F. Supp. 606, 614 (D. Kan. 1995).

Polson observed that Kansas federal district courts were split on whether the
public policy exception should be extended to cover conduct protected under a
statutory scheme, specifically the Kansas Act Against Discrimination (KAAD), K.S.A.
44-1001 et seq. 895 F.2d at 709. Wynn v. Boeing Military Airplane Co., 595 F. Supp. 727 (D.
Kan. 1984) held
that the public policy exception permitting an independent cause of action should apply
in cases in which a worker's termination is alleged to stem from conduct proscribed by
KAAD. Judge Theis in Wynn reasoned that the fact that the various remedies might
differ is sufficient to require recognition of a state common law remedy. 895 F.2d at
709.

Polson chose to follow the preclusive approach, discerning in Coleman
v.
Safeway Stores, Inc., 242 Kan. at 813-14, a reliance on "inadequacy of arbitration to
compensate employees for torts committed by employers." 845 F.2d at 709. Polson
concluded: "It appears that we must investigate the adequacy of the alternative remedy
before classifying a situation as being under the public policy exception to the
employment-at-will doctrine." 895 F.2d at 709. Polson reasoned that this court
would
adopt the view that KAAD provides an adequate and exclusive state remedy for
violations of the public policy at issue. 895 F. 2d at 709. We note, however, that
Polson seems to employ a strict view of "adequate," finding there is no evidence that
the remedies provided for in KAAD were "constitutionally inadequate to compensate
plaintiff," or "so inadequate to enforce the stated public policy as to require bolstering
by a common law cause of action." 895 F.2d at 709-10.

Coleman v. Safeway Stores

Our discussion of Polson necessarily leads to a review of
Coleman.Coleman is
important here because our answer to the certified question is based on our precedent,
not on federal rulings interpreting Kansas law.

Coleman overruled Cox v. United Technologies, 240 Kan. 95,
727 P.2d 456
(1986), Smith v. United Technologies, 240 Kan. 562, 731 P.2d 871 (1987), and
Armstrong v. Goldblatt Tool Co., 242 Kan. 164, 747 P.2d 119 (1987). The
overruled
cases involved the interrelationship of Kansas tort law and the law of labor union
contracts. In each of the three overruled cases: (1) a discharged employee was
covered by a collective bargaining agreement, (2) the agreement prohibited the
employee's discharge except for just cause, and (3) the employee was held not to have
a cause of action in tort for wrongful discharge. Coleman reasoned that a retaliatory
discharge action for filing a workers compensation claim is based on a violation of state
public policy independent of a collective bargaining agreement. 242 Kan. 804, Syl. ¶ 1.
Coleman also concluded that the arbitration procedures provided for in the collective
bargaining agreement were a "limited remedy," and might not result in the employee's
right being "adequately protected." 242 Kan. at 813-14.

Preemption and Alternate Remedies Preclusion

Preemption is not an issue here. Willamette does not contend that OSHA
preempts state common-law retaliation claims. The Tenth Circuit in a footnote to its
certification order says "Congress did not intend for OSHA § 11(c) to occupy this field
of law, nor does OSHA conflict with state law, thereby preempting it. See, Schweiss v.
Chrysler Motors Corp., 922 F.2d 473, 475-76 (8th Cir. 1990)." Preemption is an
application of law concept in which federal law must be applied to the exclusion of state
law for uniformity of interpretation. English v. General Electric Co., 496 U.S. 72,
110 L.
Ed. 2d 65, 110 S. Ct. 2270 (1990); see also, Annot., Federal Pre-Emption of
Whistleblower's State-Law Action For Wrongful Retaliation, 99 A.L.R. Fed. 775, 810.

The alternative remedies doctrine at issue here, referenced sometimes as
preclusion, is a substitution of law concept. Under the alternative remedies doctrine, a
state or federal statute would be substituted for a state retaliation claim if the
substituted statute provides an adequate alternative remedy. Bair v. Peck, 248 Kan.
824, 838, 811 P.2d 1176 (1991). Masters v. Daniel, Intern. Corp., 917 F.2d 455,
457
(10th Cir. 1990), relied on Polson. The question to ask in resolving recognition of a
state tort claim for retaliatory discharge is whether the statutory remedy is adequate
and thus precludes the common-law remedy. 917 F.2d at 457 (held the Energy
Reorganization Act, 42 U.S.C. § 5851 et seq. [1994], provided an adequate
alternative
remedy).

Willamette argues that "[t]he majority of other jurisdictions that have addressed
the issue preclude common law retaliatory discharge claims when there is an adequate
alternative state or federal remedy." The large number of cases Willamette cites is
misleading. Most of them simply state the court's conclusion without an analysis of why
the alternative remedy is adequate. See Walsh v. Consolidated Freightways, Inc., 563
P.2d 1205, 1208 ("We feel that existing remedies are adequate.") Furthermore, two of
Willamette's cases, List v. Anchor Paint Mfg. Co., 910 P.2d 1011, 1014 (Okla. 1996)
(finding that the Age Discrimination in Employment Act, 29 U.S.C. § 621 et
seq. [1994],
precludes retaliatory discharge claim), and Wehr v. Burroughs Corp., 438 F. Supp.
1052 (E.D. Pa. 1977) ("[T]he legislature would have provided additional relief in the
[Human Rights] statute if it thought it necessary.") evaluate the adequacy of statutory
schemes other than OSHA. List and Wehr are not controlling of the
ultimate question
here, whether OSHA, in particular, provides an adequate alternative remedy. Because
of the Coleman rule that an alternative remedy must be adequate, whether a statute
other than OSHA is adequate is irrelevant here. The question is whether OSHA's
remedy is adequate.

The Sub-issues

We now examine whether Coleman extends to situations other than collective
bargaining agreements. The parties have skirted this inquiry by focusing on Polson
and other federal cases, in which the interrelation of state law and usually federal
statutory schemes was directly presented. Coleman's reasoning is a dominant
influence in answering the certified question. Although Coleman arose in the
collective
bargaining context, we extend its ruling to employees protected by statutory schemes
such as OSHA. In Coleman, we said: "Our recognition of such causes of action is
limited to wrongful discharge in violation of state public policy clearly declared by the
legislature or by the courts." 242 Kan. 804, Syl. ¶ 4. Applicability of the
Coleman rule
here, therefore, depends on whether whistle-blowing is protected by a clearly declared
public policy. It is. Palmer held: "It is declared the public policy of the State of
Kansas
to encourage citizens to report infractions of the law pertaining to public health, safety,
and the general welfare." 242 Kan. 893, Syl. ¶ 1.

Having extended Coleman's shadow beyond the facts of collective bargaining,
we next ask: Is the remedy in OSHA § 11(c) [29 U.S.C. § 660(c)] "adequate"? We
conclude it is not.

OSHA § 11(c) states:

"(1) No person shall discharge or in any manner discriminate against any employee
because
such employee has filed any complaint or instituted or caused to be instituted any proceeding
under or
related to this chapter or has testified or is about to testify in any such proceeding or because of
the
exercise by such employee on behalf of himself or others of any right afforded by this chapter.

"(2) Any employee who believes that he has been discharged or otherwise discriminated
against
by any person in violation of this subsection may, within thirty days after such violation occurs,
file a
complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the
Secretary
shall cause such investigation to be made as he deems appropriate. If upon such investigation, the
Secretary determines that the provisions of this subsection have been violated, he shall bring an
action
in any appropriate United States district court against such person. In any such action the United
States
district court shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this
subsection and order all appropriate relief including rehiring or reinstatement of the employee to
his
former position with back pay." 29 U.S.C. § 660(c)(1) and (2) (1994).

The Ohio Supreme Court has also permitted a common-law tort retaliatory
discharge claim in an OSHA setting. Kulch v. Structural Fibers, Inc., 78 Ohio St. 3d
134, 677 N.E. 2d 308 (1997). Kulch held that "an at-will employee who is
discharged or
disciplined for filing a complaint with OSHA concerning matters of health and safety in
the workplace is entitled to maintain a common-law tort action against the employer for
wrongful discharge/discipline in violation of public policy." 78 Ohio St. 3d at 162.

"OSHA only allows an employee to file a complaint with the Secretary of Labor who then
decides
whether to bring an action on the employee's behalf. 29 U.S.C. § 660(c)(2) (1985). The
employee's right
to relief is even further restricted in that the complaint must be filed within thirty days of the
discrimination or discharge. Id. The decision to assert a cause of action is in the sole discretion
of the
Secretary of Labor and the statute affords the employee no appeal if the Secretary declines to file
suit.
Id. It is obvious from the language of the two statutes that although an employee may obtain any
type of
relief possible under FLSA [Fair Labor Standards Act] through the employee's own actions, the
relief
available under OSHA is limited to what the Secretary of Labor deems appropriate. It should also
be
noted that unless an employee acts immediately and files a complaint with the Secretary of Labor,
there
is no remedy available without the public policy exception." 916 S.W. 2d at 345.

Because of Coleman's specific requirement that an alternative remedy be
"adequate," we examine OSHA § 11 (c) in detail. The remedy under § 11(c), as
Shawcross observes, is the right to file a complaint with the Secretary of Labor.
Willamette overstates what happens next. Willamette suggests that upon receiving the
complaint, "the Secretary is directed to investigate the complaint," and if the Secretary
finds a violation, the Secretary "shall bring an action in any appropriate district court" to
recover "all appropriate relief." Willamette cites cases that hold that "all appropriate
relief" in the statute includes punitive damages, e.g.,Reich v. Skyline Terrace,
Inc., 977
F. Supp. 1141 (N.D. Okla. 1997), and that the "federal courts have the power to award
any appropriate relief in a cognizable cause of action brought pursuant to a federal
statute." Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 71, 117 L. Ed.
2d
208, 112 S. Ct. 1028 (1992).

Willamette neglects to point out clearly that OSHA § 11(c) says that the
Secretary "shall cause such investigation to be made as he deems appropriate," and
"[i]f upon such investigation, the Secretary determines that the provisions of this
subsection have been violated, he shall bring an action." (Emphasis added.) As the
certification order notes no guidance is given "as to what factors the Secretary must or
may consider to constitute an investigation." Flenker correctly comments that the
Secretary's discretion is a significant limitation on the employee's right of redress.
What would, in a common-law tort action, be the decision of the plaintiff and plaintiff's
counsel is, under § 11(c), the decision of a government employee. The concerns of the
government employee could range from budget constraints to political pressure. In
addition the limitation period for filing an OSHA § 11(c) complaint is 30 days from
discharge.

The Tenth Circuit in its certification order remarked: "This remedy [section 11(c)]
has been recognized as a 'limited' one, providing only for administrative proceedings
and suit in federal court which may be brought by the Secretary if the Secretary so
elects. Holmes v. Schneider Power Corp., 628 F. Supp. 937, 939 (W.D. Pa.), aff'd
806
F.2d 252 (3d. Cir. 1986)." We agree.

The facts here illustrate the type of agency ruling for which the employee cannot
receive redress. The certification order says that after Flenker filed his complaint with
OSHA, "Mr. Flenker was informed, presumably by an OSHA employee, that because he
had fixed the machine in question, which had been a part of his section 11(c) claim, he
no longer had a claim under OSHA." Section 11(c) (1) declares discharge in retaliation
for filing a complaint to be a violation of OSHA. Fixing the defective equipment in
question does not cancel the wrong of retaliatory discharge. The OSHA statute,
however, does not appear to provide a second chance for Flenker to try to convince the
agency to see things his way.

The inadequacy of the OSHA remedy is not outweighed by the factors cited by
Willamette. Willamette suggests that under OSHA (1) there is a lower burden of proof,
(2) the Secretary of Labor has considerable resources and expertise in investigating
the complaint, (3) the available federal discovery process is for gathering evidence for
use at trial, and (4) the employee has the Secretary's experienced representation at
trial without cost to the employee. If the complaint is only half-heartedly investigated,
or a suit is not filed by the Secretary of Labor, the OSHA factors do not benefit the
discharged employee at all.

In evaluating the collective bargaining remedy we held to be inadequate in
Coleman, we noted: "The factfinding process in arbitration does not equate with
judicial
factfinding. Rules of evidence do not usually apply; the rights and procedures common
to civil trials such as discovery, compulsory process, cross-examination, and testimony
under oath are often severely limited or unavailable." 242 Kan. at 814 (citing Alexander
v. Gardner-Denver Co., 415 U.S. 36, 56-57, 39 L. Ed. 2d 147, 94 S. Ct. 1011 [1974]).
The same observation can be made about the investigation that the Secretary of Labor
is directed to make under OSHA § 11(c).

We noted in Coleman that the decision to enter a collective bargaining
agreement is made by majority vote. Such agreements are not designed to protect
individual workers, but to balance the individual against the collective interest. We
said:

"The potential result of a union's emphasis on the collective good is that, in some cases,
the
employee may be left without a remedy for an employer's violation of state public policy. Here,
Coleman's union has decided for the good of the union not to support Coleman's claim by
arbitration. If
there is no independent state action for retaliatory discharge, and no avenue for Coleman to
pursue her
state public policy right against her employer, Coleman is limited to proceeding against her
representative, the union, in federal or state court under . . . the [Labor Management Relations
Act] for
her union's breach of its duty of fair representation." 242 Kan. at 814-15.

Similarly, under OSHA § 11(c), the decision to pursue an employee's claim of
retaliatory discharge is made by an administrative agency. Unless there is some kind
of administrative appeal of OSHA's decision not to pursue the complaint, which neither
party has suggested exists, an employee is limited to voting against an incumbent
legislator or against the current administration. A ballot box exercise provides less
recourse than a suit against one's labor union in federal or state court, which we found
inadequate in Coleman. 242 Kan. at 814-15.

Other Federal Statutory Remedies

It is instructive to compare OSHA § 11(c) to other federal statutory remedies.
Under the Energy Reorganization Act (ERA), if "the complainant has made a prima
facie showing," 42 U.S.C. § 5851(b)(3)(A), "[u]pon receipt of a complaint . . the
Secretary shall conduct an investigation [without OSHA's 'as he deems appropriate'
language] of the violation alleged." (Emphasis added.) § 5851(b)(2)(A). If the ERA
investigation reveals the complaint has merit and after a public hearing, the Secretary
shall order preliminary relief and may order compensatory relief after a final order is
entered. 42 U.S.C. § 5851(b)(2)(A) and (B). Further, an employee is given the right to
file suit in federal court to require compliance with such an order. 42 U.S.C. § 5851(e).

Under the adequate alternative remedy test, the administrative remedy provided
by OSHA § 11(c) is less adequate than the remedy under the ERA. Although OSHA
entitles an employee to file a complaint under § 11(c), there is no provision for an
employee to bring a private action in federal court.

We next turn to examine the employment discrimination provisions of the Civil
Rights Act. 42 U.S.C. § 2000a et seq. (1994). Title VII provides in part:

"The person . . . aggrieved shall have the right to intervene in a civil action brought by the
Commission. .
. . If a charge filed with the Commission . . . is dismissed by the Commission, or if within one
hundred
and eighty days from the filing of such charge . . . the Commission has not filed a civil action
under this
section . . . the Commission . . . shall so notify the person aggrieved and within 90 days . . . a civil
action
may be brought against the respondent named in the charge . . . by the person claiming to be
aggrieved." 42 U.S.C. § 2000e-5(f)(1).

Under Title VII, the aggrieved person is not left without a remedy if the
administrative agency does not pursue the complaint; the complainant is given
permission to sue. Also, there is no agency discretion language in the Title VII
provision providing for agency investigation. The employee's remedy is more effective
under Title VII than it is under OSHA.

Polson was correct in surmising the Kansas rule to be that an adequate
alternative remedy precludes a common-law retaliatory discharge action. However,
neither the Polson facts nor KAAD is before us here. This is an OSHA case. We are
not reviewing Polson's conclusion that we would find that KAAD provided an
"adequate
and exclusive state remedy for violations of the public policy enunciated therein." 895
F.2d at 706.

Coleman, while never specifically saying so, assumes that an adequate
alternative remedy would preclude a common-law cause of action for retaliatory
discharge. The cases overruled by Coleman (Cox, Smith, and
Armstrong) make the
same assumption.

In Cox, we said: "An employee is adequately protected
contractually from
retaliatory discharge." (Emphasis added.) 240 Kan. at 99. In Smith we said, "In
Cox,
we declined to extend the tort of retaliatory discharge . . . [citation omitted] to include
an employee adequately protected contractually from such discharge by a collective
bargaining agreement." (Emphasis added.) 240 Kan. at 572. In Armstrong, we held
that the decision in Cox controlled, and plaintiffs who are "fully covered and
protected
by a collective bargaining agreement" are barred from bringing an action in tort for a
retaliatory discharge. (Emphasis added.) 242 Kan. at 168.

The Coleman majority found the arguments in the Cox and
Armstrong dissents
persuasive, and, applying the adequate alternative remedy test, held that Cox "did not
fully recognize the limited remedy afforded the injured employee through collective
bargaining." 242 Kan. at 813. Thus, Coleman overruled Cox, Smith, and
Armstrong on
the ground that the overruled cases wrongly found the remedy under the collective
bargaining agreements to be adequate, not on the ground that "adequacy" was not the
test. Coleman, Cox, Smith, and Armstrong apply the same "adequate
remedy" test.

We answer the certified question in the negative, on the ground that OSHA §
11(c) (29 U.S.C. § 660[c]) does not provide an adequate alternative remedy under the
facts certified here.